Defendants now request reconsideration of both of those holdings. They
acknowledge that they previously relied "perhaps imprudently" on only the two federal
court decisions, but they insist that we now must reconsider our decision for two reasons.

First, defendants contend that our analysis of the manner in which the
legislature and state courts have characterized SAIF is flawed because we placed "undue
emphasis" on cases that predate SAIF's 1979 reorganization, because we mischaracterized
one of those early Supreme Court decisions, Butterfield v. State Indus. Acc. Com., 111 Or
149, 223 P 941, on reh'g, 226 P 216 (1924), and, to the extent that we relied on later
Supreme Court case law for our analysis of Butterfield, because we erred in failing to
recognize that the later case law is incorrect. We reject defendants' contentions.

Defendants begin in something of a deep hole: They are making the sort of
arguments that might have been helpful before we issued an opinion rather than after.
We ordinarily do not entertain arguments asserted for the first time on reconsideration.
See, e.g., Kinross Copper Corp. v. State of Oregon, 163 Or App 357, 360, 988 P2d 400
(1999), rev den, 330 Or 71 (2000) ("If a contention was not raised in the brief, * * * it is
not appropriate to assert it on reconsideration."). In this case, defendants have offered no
good reason--in fact, they have offered no reason at all--for their failure to have asserted
their new arguments previously.

We did characterize Butterfield as holding that a suit against the State
Industrial Accident Commission was not a suit against the state under the law that existed
at the time. Johnson, 202 Or App at 280-81. We stand by that characterization. In
Butterfield, the Attorney General argued that "the State Industrial Accident Commission
is an arm of the state" and that, as a result, the state is the real party interest in workers'
compensation claims litigation. 111 Or at 152. The Supreme Court rejected that
argument, holding that "[t]he state is not a party" to such cases. Id. at 153. Defendants
now propose a different reading of Butterfield. They contend that the court actually based
its decision on "the legislature's waiver of whatever immunity from suit SIAC would have
had as an arm of the state." We can find no support for that interpretation of Butterfield
in the text of the court's opinion, however. Defendants' reading of the case also is at odds
with the manner in which the Supreme Court itself later characterized Butterfield in
Bennett v. State Ind. Acc. Com., 203 Or 275, 280-81, 279 P2d 655 (1955). Defendants
suggest that Bennett was incorrectly decided in that respect. That defendants disagree
with the Supreme Court's decision, however, is a matter that is more appropriately
addressed to the Supreme Court. See Gunn v. Lane County, 173 Or App 97, 102 n 3, 20
P3d 247 (2001) (parties' contentions that Supreme Court case law is in error must be
addressed to the Supreme Court, not this court ).

Second, defendants argue that the state treasury is, in fact, vulnerable for at
least some of SAIF's obligations. Defendants concede that the state is not likely liable for
debts that SAIF is "contractually obligated to pay." Defendants argue that SAIF is,
however, subject to the Oregon Tort Claims Act and that the Risk Management Division
of the Department of Administrative Services is obligated to pay tort claims against SAIF,
as for any state agency. Defendants seek to establish that the Risk Management Division
pays tort claims against SAIF by introducing two sets of documents that were not
submitted to the trial court and are not part of the record of this case. Each consists of a
transmittal letter from the Risk Management Division and an accompanying claim check
that we are to assume constitutes payment of a tort claim against SAIF. Those
documents, in defendants' view, "demonstrate beyond any doubt that the state is
responsible for paying tort judgments entered against SAIF." We reject defendants'
argument for several reasons.

To begin with, an argument that the trial court was correct for reasons not
advanced below cannot be raised for the first time on appeal if doing so entails making a
different record. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 660, 20
P3d 180 (2001) (rule permitting affirmance for alternative reason not advanced to trial
court requires that "the record materially be the same one that would have been developed
had the prevailing party raised the alternative basis for affirmance below"). That certainly
appears to be the posture of this case, in which defendants acknowledge that their
argument relies on a record that is different from the one developed before the trial court.

Defendants attempt to avoid that problem by arguing that we can take
judicial notice of the documents because they are "public records." The fact that we may
take judicial notice of a fact, however, does not mean that the record has not changed or
that plaintiff is not prejudiced by the inability to respond by making a different record of
his own. Aside from that, just because a document is a "public record" does not mean
that the information that it contains is properly the subject of judicial notice. Defendants
alert us to no authority supporting the proposition, and we are aware of none. Defendants
cite OEC 201, but that rule merely states that we may take judicial notice for the first time
on appeal, as long as the evidence otherwise is properly the subject of judicial notice.
Defendants also cite OEC 803(8), but all that rule provides is that certain public records
are not hearsay, not that they are subject to judicial notice.

Assuming that we could entertain the argument, assuming that we could
take judicial notice of the documents on which defendants rely for support of that
argument, and assuming all of the inferences that defendants ask us to derive from those
documents, we are not persuaded that the documents demonstrate what defendants
suggest. At best, they demonstrate that SAIF participates in a state-managed insurance
fund that is "separate and distinct from the General Fund," ORS 278.425(1), that operates
on an actuarial basis, ORS 278.435(1), and that is financed out of assessments based on
"relative risk and loss experience," ORS 278.435(3), like any insurance policy.
Defendants do not explain--and we do not understand--why the fact that SAIF obtains
what is, in essence, an insurance policy from the state necessarily leads to the conclusion
that it is an arm of the state forEleventh Amendment purposes. Indeed, the law provides
that local governments also may contract with the Risk Management Division to obtain
the same insurance, ORS 30.282(4), and we know from United States Supreme Court
decisions that that does not make them arms of the state for Eleventh Amendment
purposes. See Howlett v. Rose, 496 US 356, 377, 110 S Ct 2430, 110 L Ed 2d 332 (1990)
(state law may not immunize local government from liability under federal civil rights
statute).

For all of the foregoing reasons, we reject defendants' new arguments in
support of the trial court's entry of summary judgment.

Petition for reconsideration allowed; opinion adhered to.

1. For a similar take on the legislation, see 46 Op Atty Gen 323 (1990) ("The new
status of the state's insurance company was characterized by acute ambiguity.").